The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-12-07

4
| zion OF Fox and Wisconsin rivers. No statute
made provision for compromising the plaintiff or
others similarly situated for damages to their
! lands. and it was commended that as the damages
| OF which he complained were only the result OF
the Improvement under the sanction of the
State of navigable strea On, he was not entitled
| to compensation from the State or its agents.
| The case. therefore. involved the question
whether the OVERLOOKING of the plaintiffs land in
the manner STATED, and TO such extent that 1t
became practically unfit TO be used, was TAX
| ing OK pro perty within the meaning of the Con
stitution of Wisconsin. providing that the prop
erty of n o person shall be taken for public use
without just CONDENSATION therefor
This court said it would be very curious
and unsatisfactory result were it held that
''If the government refrains from absolute
version OF real property to the uses OF the puoc It
can destroy its value entirely iuct rreparable
subject it to total destruction without making any
compensation; because in the narrowest of that
structiOn would perveat the constitutional provision
into restriction upon the rights OF the citizen.
government and make it an authority for the inva-
sion of private rights under the pretext of the pub
lie good, which had no warrant in the laws or prac-
These principles have no application to the
Pumpelly Green Bay Company arose under
the States power OF eminent domain. while the
question now before arises under what are
strictly the police powers of a State. exerted
in q legitimate manner for the protection of the
people against the evils of intemperance and its
attendant evils of disorder, disease pauperism
and crime.
"Pumpelly's case as this court said in Trans
pcrtation Company Chicago (99 .. S. GAP,
was an extreme qualification of the doctrine
universally held that acts done in the proper
exercise of governmental powers and not di-
rectly encroschng upon private property.
though these conseque noes may impair its use,'
do not constitute taking within the meaning
o. the constitutional provision, and do not
title the owner OF such property to compensa-
ton from the State or its agent. or give him any
right OF action. It was, this court said
case in which there was q permanent flooding
of private property physical invasion of the
real estate of the private owner, ard practical
custer of his possession (Ibio.l His property
was in effect, required to be devoted to the ben
eft of the public, and consequently he was
titled to compensation.
''As already stated. the present case must be
governed by principles that do not involve the
power of eminent domain in the exercise Of
which property may not be taken for public
without compensation. Prohibition simply
upon the use of property for specific purposes
that are declared by valid legislation to be iniu-
rious to the health, morals safety of the
mnnity cannot in any just sense be deemed a
taking nor an appropriation of property for the
public benefit. Such legislation does not dis
turb the owner In the Use of bis property for
lawful purposes but is only declaration by the
State that its use by anyone for certain forbid
dea purposes is prejudicial to the public inter-
est5 Nor legislation of that character
como within the fourteenth amendment in any
case, Mess 1t is apparent that its real object is
not to protect the community or to promote the
general being but. under the euiss of police
regulations, to deprive the owner of his liberty
and property without due process of law.
1.-THE power which the States unquestonabiy
have of prohibiting such use by individuals Of
their property will be prejudcial to the
health, the morals the safety of the public is
not, and consistently with the existence of or
esnized society could not be burdened with the
condition that the State must compensate such
individual owners for pecuniary losses they
tain, by reason of their not being permitted by
noxious OF their property to in 1ict injury
npon' the community of which they form a part.
The exercise of the police power by the destruc-
4fnr Of hsrtt &c tcntf
sance. or the prohibition of its in a partcu-
lar way whereby lis value becomes deprecated.
Is very different from taking property for public
use or from deprivlng person of his property
without due process Of law. In the
nuisance only is absted; in the other unoffend.
inc property is taken away from an innocent
owner.
cit is true that when the defendants in these
cases purchased or erected their breweriee the
OF Intoxicating liquors. But the State did not
thereby give any assurance. come under an
obligation. that its legislation upon tina. subject
would remain unchanged. Indeed, as was said
i:z Stone Mississippi (101 u. 81. the super
S!ticn of the public health and the public morals
is government power, continuing in its
nature, and to be dealt with the special ext.
gencies of the moment may require, and that
for this purpose the largest legislative diecre-
ton is allowed. and the discretion cannot be
parted with any more than the power ITSELF
so in Beer Company VS.. Massachusetts (97
q. 8. l32E
Tf the public safety the public morals require
the discontnuance of any manufacture traffic the
hand of the Legislature cannot be stayed from pro-
vding for its discontnuancs any in eidenta ncon.
yeieace which individuals corporations may suffer
alt remains to consider certain questions re-
Eating particularly to the thirteenth section OF
the act Of 1885. That section is as follows:
Section 13. u places where Intoxicating liquors
manufactured. sold bartered given away in vi
oation of any of the provisions of this where
cry violation of this act are hereby declared to be
common nuisanees, and upon the Judgment of any
nuisance, urder this section the sheriff his deputy
or UNDERESTIMATE, any constable of the proper
ty marshal OF any city where the same is located
shall be directed to shut up and abate such place by
taking possession thereof and destroying all ntoxi-
eating liquors found therein together with all signs
screens bars bottles glasses and other property used
owner or keeper thereof shall. upon conviction be
adjudged guilty OF maintaining common nuisance,
nor more than $500, and by imprisonment in the
county jail not less than thirty days than
citizen of the county where such nuisance
ists or is kept, or is maintained, may maintain
ally enion The injunction shall be granted
at the commencement of the action and bond shall
injunction granted in such proceeding shall be pun
ished for contempt by fine of not less than 800
nor more than $500. or by imprisonment in the coun
ty jail not less than thirty days than six
months, or by boch such fine and imprisonment in
the discretion of the court
SIT s coptended in the OF the State VS..
Ziebold & Hagelin that the entire scheme OF
this section is an attempt to deprive persons
who come within its provisions of their property
and OF their liberty without due process of law,
especially when taken in connection with that
clause of Section II tamendatory of Section 81 of
the act of 1881 which provides that in prosecu-
tons under this act by Indictment otherwise
it shall not he necessary in the first
instance for the State to prove that the party
charged did not have permit to sell intoxica-
ting liquors for the accepted purposes
1--WE unable to perceive anything in those
regulations inconsistent with the constitutional
guarantees of liberty and property. The State
having authority to prohibit the manufacture
and sale of Intoxicating liquors for other than
medical, scientific, ana mechanical purposes,
we do not doubt her power to declare that any
place kept and main tanned for the illegal manu-
fscture and sale of such liquors shall De deemed
a common nuisance and be abated. aud at the
same time TO provide for the indictment ard
trial of the offender. One is q proceeding
against the property used for forbidden pur-
poses. while the other is for the punishment of